Legal Transnationalism: the Relationship Between Transnational Social Movement

Journal of Law & the American Social Inquiry Bar Foundation Law & Social Inquiry Volume 36, Issue 2, 419–454, Spring 2011 Legal Transnationalism: The Relationship between Transnational Social Movement Building and International Lawlsi_1237 419..454 Tamara Kay This article examines the compelling enigma of how the introduction of a new international law, the North American Agreement on Labor Cooperation (NAALC), helped stimulate labor cooperation and collaboration in the 1990s. It offers a theory of legal transnationalism—defined as processes by which international laws and legal mechanisms facilitate social movement building at the transnational level—that explains how nascent international legal institutions and mechanisms can help develop collective interests, build social movements, and, ultimately, stimulate cross-border collaboration and cooperation. It identifies three primary dimensions of legal transnationalism that explain how international laws stimulate and constrain movement building through: (1) formation of collective identity and interests (constitutive effects), (2) facilitation of collective action (mobilization effects), and (3) adjudication and enforcement (redress effects). INTRODUCTION In 1994, the North American Free Trade Agreement’s (NAFTA’s) labor side agreement, the North American Agreement on Labor Cooperation (NAALC), created a new and unprecedented transnational labor rights regime that linked trade and labor rights for the first time in a free trade agreement. The hotly contested regional governance institution established new transnational labor rights standards and transnational legal mechanisms to adjudicate complaints of labor rights violations across the continent. Despite its innovation, however, labor leaders in all three NAFTA countries bemoaned the NAALC’s lack of teeth and predicted it would do little to advance labor rights in North America. An examination of the NAALC’s results suggests that labor leaders’ fears were prescient; the NAALC has not provided adequate tools to ensure that the rights of workers across the continent are protected. But it does reveal one Tamara Kay is associate professor of sociology at Harvard University and codirector of Harvard’s Transnational Studies Initiative. Her work centers on the political and legal implications of regional economic integration, transnationalism, and global governance. She can be reached at tkay@ fas.harvard.edu. She is interested in how organizations and social movements–particularly labor and environmental movements, NGOs, and nonprofits–respond and adapt to processes of regional economic integration and globalization. Many thanks to Frank Dobbin, Peter Evans, Neil Fligstein, Sidney Tarrow, Harold Toro Tulla, and reviewers for their insightful and helpful comments. Earlier versions of this article were presented at Northwestern University, Brown University, Harvard University, the University of California, Los Angeles, the University of Arizona, Tucson, and the Universidad Autónoma Metropolitana-Azcapotzalco, Mexico City. Many thanks to all those who, at these events, offered invaluable suggestions and ideas. © 2011 American Bar Foundation. 419 420 LAW & SOCIAL INQUIRY unexpected outcome of the NAALC that has indirectly advanced labor rights in North America—the stimulation of labor transnationalism or ongoing cooperative and collaborative relationships among Mexican, US, and Canadian unions and union federations. As has been well documented, the relationships among unions and federations that emerged in NAFTA’s wake were new and unique in North America (see Cook 1997; Compa 1999; Kay 2005). They were more equitable and based on efforts to create and nurture long-term programs based on mutual interests. The relationships stand in stark contrast to the sporadic contacts unions had in the pre-NAFTA era. The unanticipated emergence of labor transnationalism in North America therefore presents two compelling and interrelated questions I address in this article: How did the NAALC, a new regional legal mechanism, help stimulate labor cooperation and collaboration? And what were the limitations of the NAALC’s effects on labor transnationalism? The questions that arise out of the emergence of North American labor transnationalism are situated at the intersection of social movement and legal scholars’ efforts to develop a robust theoretical framework to explain the relationship between law and social movement building. In this article, I argue that the emergence of labor transnationalism in North America was generated by the introduction of a new international law that helped facilitate collective action and mobilization.1 I offer a theory of legal transnationalism—defined as processes by which international laws and legal mechanisms facilitate social movement building at the transnational level. I identify three primary dimensions2 of legal transnationalism that explain how international laws stimulate and constrain movement building: formation of collective identity and interests, facilitation of collective action, and adjudication and enforcement. Although the emergence of labor transnationalism is surprising, particularly given North American labor activists’ derision of the NAALC itself, its analysis opens a theoretical window onto the processes and mechanisms by which social movement building occurs at the transnational level in relationship to the law. Sociolegal research on the law’s effects on movement building has developed almost exclusively in relationship to social movements and laws at the national level. We therefore know very little about the effects of laws on movement building at the transnational level. In particular, we have limited knowledge of how collective identities and interests (which can facilitate collective mobilization and action) form and develop across borders and how the obstacles to their formation are overcome. The process by which workers in different countries recognize and develop mutual interests, and how new legal structures and mechanisms facilitate their creation, has not been adequately examined. NAFTA, then, is a case of an international law that catalyzed activism across North American borders. Broadly speaking, it shows how a new legal mechanism—in this case a transnational system for adjudicating labor conflicts—can create an arena 1. I use the terms international law and transnational law interchangeably. Although NAFTA applies to only three countries, political scientists would use the term international law. See the distinctions in Tarrow (2005). 2. Although I use the term dimension in this article, these could also be conceptualized as mechanisms. Legal Transnationalism 421 that generates transnational movement building. NAFTA provides a quite strong case because it is the only transnational legal system that (1) granted unions a formal role in the negotiation process, (2) has a review function dedicated solely to adjudicating labor rights complaints, (3) allows any union to utilize the process, and (4) allows public hearings and testimony. Because it is the only transnational legal instrument that requires unions to file complaints outside of their home countries, it has a unique structure compared to other transnational mechanisms, which makes its effects easier to isolate and identify. Finally, NAFTA is an important case to examine and a strong case around which to develop a theory of legal transnationalism because among all the transnational legal mechanisms North American unions have utilized since the founding of the International Labor Organization (ILO) in 1919, it is the only one that has generated trinational relationships among US, Canadian, and Mexican unions.3 It is important to underscore that I am not arguing that trade agreements are necessary for stimulating transnationalism, nor am I providing a general explanation for how all cases of labor transnationalism emerge. My analysis focuses on why and how labor transnationalism emerged in North America in the early 1990s. However, my argument about how international laws and legal mechanisms affect movement building in relation to the NAFTA case has clear implications for the myriad other international legal mechanisms and governance structures that are emerging around the world and their effects on different kinds of social movements—from environmental movements seeking climate change regulation to investors lobbying for corporate governance reform to citizens demanding international banking regulation. SOCIOLEGAL PERSPECTIVES ON LAW AND SOCIAL MOVEMENTS The vast majority of law and social movements research examines the efficacy of rights claims, legal mobilization, and the courts. A much smaller body of research explores the relationship between law and movement building, or the law’s effects on movements’ emergence, growth, decline, and strategic repertoires. Some of the earliest approaches focused on the labor movement and its relationship to labor law. Scholars linked the bureaucratization of the labor movement to labor legislation that, they argued, tempered class struggle by privileging collective bargaining rights and constituting activists as bureaucratic actors with particular roles and obligations (see Klare 1978; Stone 1981; Rogers 1990). While the law can undermine collective action, it can also have the opposite effect by constituting social movement actors in ways that build social movements. As studies of various rights movements have shown, the law can help catalyze movements, recruit members,

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